1. The purpose for which the defendant took the bill was fully answered, when it was allowed by the *arbitrators to the credit of Greenleaf. This appears to have been the object which the parties had in view, and the event on which, according to the tenor of the receipt, the defendant was to pay the money. At the time of obtaining this credit, or, at least, on the performance of the award, the bill was discharged, and became the property of Downing. The defendant could not then return it, within the spirit of his agreement with the plaintiffs, for it could not have been intended that he should have the liberty of returning it when satisfied and paid. The plaintiffs could no longer maintain an action upon it; their debt was changed and converted into a demand against Greenleaf, or against the defendant. Although they might sustain their action against Greenleaf, we think they have also their remedy against the defendant. His stipulation expressed in the receipt was to return the bill, or pay the amount. Here was *95a special undertaking, which, 'although gratuitous on the part of the defendant, was obligatory, for a mandatary or bailee, without compensation, may bind himself to be answerable even for casualties. (Jones on Bailment, 40, 41; Ld, Raym. 919 ; 1 Salk. 26.) A mere agreement to undertake a trust, in futuro, without compensation, it is true, is not obligatory ; but when once undertaken, and the trust actually entered upon, the bailee' is bound to perform it, according to the terms of his agreement. The confidence placed in him, and his undertaking to execute the trust, raise a sufficient consideration ; a contrary doctrine would tend to injure and deceive his employer, who might be unwilling to consent to the bailment on any other terms.(a)
In the present case, taking the receipt in connection with the evidence that the defendant was to obtain a credit for the bill to Greenleaf, in the arbitration with Downing, the undertaking is to be considered as personal on his part, and To result in this, that if such credit was allowed, he would be answerable for the amount to the plaintiffs. It can admit of no other construction, unless we suppose the parties considered the defendant as acting also; in relation to this bailment, as the factor or agent of Greenleaf* and that they thereby meant to bind his principal only. This cannot well be *supposed, for it is wholly foreign from the nature and scope of such an agency. The engagement was therefore personal, on the part of the defendant, and Greenleaf could never be liable on the ground of his agent’s agreement respecting the bill, nor on any other ground than actually receiving the money to his use.(a) But,
*962. Supposing the bailment to the defendant to have been general, and that he was subject to no special agreement to return the bill or pay the amount, although acting gratuitously, he was still bound, according to the authorities on this ‘ subject, and the reason of the thing, to use a due diligence and attention, adequate to the trust imposed in him, to perform his engagement with good faith, and neither do nor. omit any thing which the nature of the trust required. In the present case, the award, by which the bill was allowed to Greenleaf, was made on the 30th of March, 1796, and substantially performed by Downing on the 20th of April following, and this performance made to the defendant himself as the agent of Greenleaf, who then also fulfilled the award on the part of Greenleaf. The defendant, therefore, at that time, knew that the bill was satisfied, and he informed Downing that he would pay the amount to the plaintiffs. If he was not liable to pay it himself, Greenleaf, undoubtedly was, and he ought, at least, to have given notice to the plaintiffs of its allowance to Greenleaf, and.of their right to demand it of him. But instead of doing this, he continually kept them ignorant of its real situation, told them it was still in the hands of the arbitrators to be recovered, and amused them by sending for it to enable them to proceed in the suit against Flint. This conduct, considered- as an omission of duty merely, was inconsistent with ordinary diligence and fidelity to the interest of the plaintiffs, and to the trust reposed in the defendant, and, in contemplation of law, it was gross neglect. If we add to this, his actually receiving the whole of the property awarded to Greenleaf, his paying the whole of the money awarded to Downing, and informing him that he should pay this bill to the plaintiffs, and his after-wards ^paying or advancing 140 dollars of it onaccount, the circumstances are sufficient to raise a presumption, that he was possessed of the means, either from Greenleaf, or from the property received in pursuance of the award, to discharge the bill, and that he ought in good faith to have done it.
The cause, during the last trial, has probably received all the light which can be thrown upon it, and the present verdict appears to be according to the justice and equity of the case. To permit the cause to be again agitated would answer no good purpose. We think, therefore, that the verdict ought not to be disturbed, and that judgment must be entered for the plaintiffs.
Judgment for the plaintiffs.
(a) It was formerly a question whether any action lay for a total failure to perform a gratuitous executory undertaking. This subject was considered by Sir William Jones, in his elegant essay on the Law of Bailments, and he arrived at the conclusion that the action could be maintained. Suppose,” he says, “ for instance, that Robert’s cornfields are surrounded by a ditch or trench, in which the water from a certain spring used to have a free course, but which has of late been obstructed by soil and rubbish ; and that Robert informed his neighbor Henry of his intention speedily to olear the ditch, Henry offers and undertakes immediately to remove the obstruction and repair the banks without reward, he having business of the same kind to perform oil his own grounds : if, in this ease, Henry neglect to do the work undertaken, ‘ and the water, not having its natural course, overflow the fields of Robert, and spoil his corn,’ may not Robert maintain his action on the case ? Most assuredly; and so in a thousand instances of proper bailments that might be supposed, where a just reliance on the promise of the defendant prevented the plaintiff from employing another person, and was consequently the cause of the loss which he sustained ; Year B. 19 Hen. VI. 49 ; for it is, as it ought to be, a general rule, that, for every damnum injuria datum, an action of some sort, which it is the province of the pleader to devise, may be maintained ; and, although the gratuitous performance of an act be a benefit conferred, yet, according to the just maxim of Paulus, Adjuvari nos, non decipi, beneficio oportet: D. 13, 6, 17, 3 ; but the special damage, not the assumption, is the cause of this action ; and, if notice be given by the mandatary, before any damage incurred, and while another person may be employed, that he cannot perform the work, no process of law can enforce the performance of it. A case in Brooke, made complete from the Hear Book, to which he refers, seems directly in point ; for, by Chief Justice Fineaux, it had been adjudged, that, ‘ if a man assume to build a house for me by a certain day, and do not build it, and I suffer damage by his nonfeasance, l shall have an action on the ease, as well as if he had done it amiss but it is possible that Fineaux might suppose a consideration, though none be mentioned ; Bro. Abr. tit. Action, Sur le Case, 72.” Jones on Bailments, Am. ed. 1836, p. 56, 57.
The general rule of the Civil Law accords with this view of the subject. Sicut autem liberum est, mandatum non suscipere ; ita susceptum consummari oportet, nisi renunciatmn sit. Si susceptum non impleverit, tenetur. Quod mandatum susceperit, tenetur, etsi non gessissit. Dig. Lib. 17, tit. 1,1.5, § 1; Id. 1. 6, § 1: Id. 1. 22, § 11; Inst. Lib. 3, tit. 27, 1. 11 ; Pothier, Pand. Lib. 17, tit. 1, n. 25 to 29 ; Pothier, Contrat de Mandat, n. 38 ; AylifFe, Pand. B. 4, tit. 10, p. 478,479. Qui mandatum suscepit. si potest id cxplere, deserere promissum officiumnon debet; alioquin, quanti mandatoris intersit, damnabitur. Dig. Lib. 17, tit. 1, I. 27, § 2; Pothier, Contrat de Mandat, n. 38. Procuratorem non tantum pro his qua¡ gessit, sed etiam pro Ms, qua gerenda suscepit, preesiare necesse est. Cod. Lib. 4, tit. 35, I. 11: Pothier, Contrat de Mandat, n. 38. Domat, 1 Domat, B. 1, tit. 15, § 3, art. 1, 12, § 4, art. 3,4, 5; Pothier, Contrat de Mandat, n. 38 to 42 ; — the modern Code of France, art. 1991 to 1997; — and the Scotch Law, Frsk. Inst. B. 3, tit. 3, § 35, 40 ; 1 Stair, Inst. B. 1, tit. 12, § 9 ; recognize the rule in its full extent. Story on Bailments, § 164. This is the reason which is given in the Institutes for the rule : Mandatum non suscipere cuilibet liberum est; susceptum autem consummandum est, aut quamprimum renunciandum, ut per semelipsum aut per alium, eandem rem mandator exequatur. Inst. lib. 3,27, 11.
But by the Common Law, ex nudo pacto non oritur actio ; Noy. Max. 24; Bro. Max. 336 ; a consideration must intervene to give utility to tile agreement. A declaration, therefore, which stated that the defendant, who was a carpenter, was retained by the plaintiff, and undertook to repair a certain house, which he failed to do per quod the walls of the plaintiff’s house were damaged, was held bad because there was no allegation of consideration, or that the defendant entered upon the work. Elsee v. Gatward, 5 T. R. 143. And so where A. and B. wore joint owners of a vessel, and A. voluntarily undertook to get the vessel insured, but neglected to do so and the vessel was lost, it was held that no action would lie against A. though B. sustained a damage by the nonfeazance. Thorne v. Deas, 4 Johns. R. 84 ; McGee v. Bast, 6 J. J. Marsh. 455 ; 2 Wash. 203. See Smedes v. Bank of Utica, 20 Johns. R. 372, 379. S. C. in error, 3 Cowen, 662, 683. 2 Kent Comm. 569, 570, 571. Story on Bailment, ed. 1846, § 166, et seq.
If however, one enter upon the performance of a gratuitous undertaking, the confidence induced thereby is a sufficient consideration to create a duty ppon the part of the mandatory to exercise that degree of diligence which is required of bailees without compensation. 1 Smith Lead. Cas. 96, n. to Coggs v. Bernard. Story on Bailments, ed. 1846, § 182 a. 2 Kent Comm. 572, He is liable therefore for no act or omission short of gross negligence. Stanton v. Bell, 2 Hawks, 145. Sodowsky v. M’Farland, 3 Dana, 205. Tracy v. Wood, 3 Mason, 132. Tompkins v. Saltmarsh, 14 S. & R. 275. Bland v. Wormack, 2 Murph. 373. Beardslee v. Richardson, 11 Wend. 25. Anderson v. Foresman, Wright, 598. The leading ease upen this subject is Coggs v. Bernard, Ld. Raym. 909, where one who had undertaken, without compensation, to carry goods safely and securely, was held responsible for damage that they sustained in their carriage through his neglect. In accordance with the principle of that case, it has been held that an action would lie against a gratuitous agent, who on procuring the renewal of a fire policy, neglected certain formalities, the omission of which rendered the policy inoperative; Wilkinson v. Coverdale, 1 Esp. N. P. C. 74 ; see Setter v. Work, Marshall on Ins. 299 ; or in one who carrying a parcel, lost it by “ great negligence Beauchamp v. Powley, 1 M. & Rob. 38 ; or one who in keeping money, by “ gross negligence” on his part, it was stolen ; Doorman v. Jenkins, 2 Ad. & Ell. 256 ; .or one who having received aud undertaken to deliver a letter containing money., to pay a noto and take up the note, should neglect to carry the letter or take up the note ; Story on Bailments, § 171 a, § 171 b ; or one who having received and undertaken to collect a note when due, or give notice of dishonor to the indorsers, omits to do either ; Smedes v. Bank of Utica, ut sup; Bank of Utica v. McKinstry, 11 Wend. 473; Beardsley v. Richardson, id. 25; Callender v. Oelricks, 1 Arnold R. 401, 402. The mandate having been undertaken, the mandatory must perform it according to the terms of his lawful contract, which may be enlarged or restricted as the parties'please. Jones on Bailments, Am. ed. 1836, p. 53, 54; Story on Bailment, ed. 1846, § 161, §164.
(a)“ In general, when a man is known to be acting and contracting merely as the agent of another, who is also known as the principal, his acts anti contracts, if he possesses full authority for the purpose, will be deemed the acts and contracts of the principal only, aud will involve no personal respom *96sibility on the part of the agent, unless the other circumstances of the case lead to the conclusion, that he has either expressly or impliedly incurred, or intended to incur, such personal responsibility.” Story on Agency, 2d ed. § 261. 3 Chitty on Comm, and Manuf. 211, 212. Paley on Agency, by Lloyd, 368, 369. Paterson v. Gandesequi, 15 East, 62. Ex parte Hartop, 12 Ves. 352. Owen v. Gooch, 2 Esp. R 567. Mauri v. Heffernan, 13 Johns. R. 58, 77. Smith on Merc. Law, 78, 79. Johnson v. Ogilby, 3 P. Will. 277. 2 Kent, Comm. Lect. 41, p. 629, 630, 3 ed. Rathbone v. Budlong, 15 Johns. R. 1. Meyer v. Barker, 6 Binn. 234. Waring v. Cox, 1 Miller, Louis. R. 198. Thompson v. Davenport, 9 B. & Cressw. 78. See also Mr. Smith’s able note to this case, in his Leading Cases, vol, 2, p. 222 to 227. Thomas's Ex’r v. Edwards, 2 Mees. & Welsb. 215. Krumbhaar v. Ludeling, 3 Miller, Louis. R. 642. La Farge v. Ripley, 16 Martin, R. 308. Waring v. Cox, 1 Miller, Louis. R. 200. Zacharie v. Nash, 13 Louis. R. 21. Smith on Merc. Law, p. 140, 3d ed. 1843. Campbell v. Baker, 2 Watts, R. 33. Mr. Chancellor Kent, in his learned Commentaries, uses the following language; — “ It is a general rule, standing on strong foundations, and pervading every system of jurisprudence, that,'where an agent is duly constituted, and names his principal, and contracts in his name, the principal is responsible, and not the agent.” 2 Kent, Comm. Lect. 41, p. 629, 630, 4th ed. Story on Agency, .§ 154, 155. But it may be generally stated that an agent makes himself personally reponsible to third persons:—
1. Whenever he does any act without authority from his principal; Story on Agency, § 264, et seq.; Paley on Agency, by Lloyd, 386, 387. Polhill v. Walter, 3 B. & Adolph. 114. Parrot v. Wells, 2 Vern. R. 127. Bayley on Bills, eh. 2, § 7, 5th ed. 3 Chitty on Comm, and Manuf. 212. 2 Liverm. on Agency, 255, 256, ed. 1818. Sumner v. Williams, 8 Mass. R. 178. Bowen v. Morris, 2 Taunt. 385, 386. East India Co. v. Hensley, 1 Esp. R. 112. Smith on Merc. Law, 79, 80, 2d ed. 2 Kent, Comm. Lect. 41, p. 629 to 632, 4th ed. Johnson v. Ogilby, 3 P. Will. 278, 279. Meech v. Smith, 7 Wend. 315. Dusenbury v. Ellis, 3 Johns. Cas. 70 ; per Lord Holt, in Holt’s Rep. 309. See Woodes v. Dennett, 9 N. Hamp. R. 55. (Even though under the belief that he possesses such authority; Smout v. Ilbery, 10 Mees. & Welsh, 1, 9, 10.)
2. Where at the time of making the contract, the agency is not revealed ; Story on Agency, § 266, et seq. Owen v. Gooch, 2 Esp. R. 567. Ex parte Hartop, 12 Ves. 352. Patterson v. Gandasequi, 15 East, 62, 68. 3 Chitty on Comm, and Manuf.211. Mauri v. Heffernan, 13 Johns. 58, 77. 2 Liverm. on Agency, 245-247, 257, ed. 1818. 2 Kent, Comm. Lect. 41, p. 630, 631, 4th ed. Stackpole v. Arnold, 11 Mass. R. 27. James v. Bixby, 11 Mass. R. 34, 37, 38. Bedford v. Jacobs, 16 Martin R. 530. Brockway v. Allen, 17 Wend. 40, 43. 2 Kent, Comm. Lect. 41, p. 629, 631, 4th ed. Hyde v. Wolf, 4 Miller, Louis. R. 234. Taintor v. Prendergast, 3 Hill, R. 72. Corlies v. Widdefield, 6 Cowen, 181. Rathbon v. Budlong, 15 Johns. R. 1. Waring v. Mason, 18 Wend. 425. Mills v. Hunt, 20 Wend. 431. Raymond v. Crown Eagle Mills, 2 Metcalf, R.319. Smith on Merc. Law, p. 134, 135, 140, 141,3d ed. 1843. Upton v. Gray, 2 Greenl. R. 373. Keen v. Sprague, 3 Greenl. R. 77. Parker v. Donaldson, 2 Watts & Serg. 9 ; — and the name of his principal made known. Story on Agency, § 267. Paley on Agency, by Lloyd, 372, 373. 3 Chitty on Comm, and Manuf. 211. Paterson v. Gandasequi, 15 East R. 62, 68, 69. Ex parte Hartop, 12 Ves. 352. Smith on Merc. Law, 78, 79, 2d ed. Id. ch. 5, § 5, p. 134-136, 140, 141, 3d ed. 1843. Thomson v. Davenport, 9 B. & Cressw. 78, 88, Bedford v. Jacobs, 4 Miller, Louis. R. 528. Beebe v. Roberts, 12 Wend. 413. 2 Kent, Comm. Lect. 41, p. 629-631, 4th ed.
3. Where the principal resides in a foreign country.' Story on Agency, § 268. Paley on Agency, by Lloyd, 248, 373, 382. Buller, N. P. 130. De Gaillon v. L’Aigle, 1 Bos. & Pull. 368. Paterson v. Gandasequi, 15 East, R. 62. Thomson v. Davenport, 9 Barn. & Cressw. 78. Smith on Merc, Law, 76, 78, 2d ed. Id. ch. 5, § 5, p. 134-136, 140, 141, 3d ed. 1843, 2 Liverm. on Agency, 249, ed. 1818. Stackpole v. Arnold, 11 Mass. R. 27. Bradlee v. Boston Glass Manufactory, 16 Pick. 347, 350. But the presumption that the agent is personally liable in this case may be rehutted by proof of any usage' or agreement to the contrary. See Kirkpatrick v. Stainer, 22 Wend. 244. Taintor v. Prendergast, 3 Hill, 72, 73.
4. Where the agent makes the contract in his own name or voluntarily incurs a personal responsibility, either express or implied. Story on Agency, §269. Id. § 147, 154, 156 to 159. 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16. 3 Chitty on Comm, and Manuf. 211. 2 Kent, Comm. Lect. 41, p. 630, 4th ed. Id. 631. Jones v. Littledale, 6 Adolph. & Ellis, 486, 490. Hopkins v. Mehaffey, 11 Serg. & Rawle, 129. Burrell v. Jones, 3 Barn. & Cressw. 160. Ireson v. Conington, 1 Barn. &. Cressw. 160. Magee v. Atkinson, 2 Mees. & Welsb. 440. Seaver v. Hawkes, 5 Moore & Payne, 649. Kirkpatrick v. Stainer, 22 Wend. 244, 254, 255. Taintor v. Prendergast, 3 Hill. R. 72. Simonds v. Herd, 23 Pick. 121. Higgins v. Senior, 8 Mees. & Welsb. 834, 845. Mills v. Hunt, 20 Wend. 431. Newhall v. Dunlap, 2 Shepley, R. 180. Waring v. Mason, 18 Wend. 425. Collins v. Butts, 10 Wend. 399.
5. In special cases where the policy of the law demands that an agent who has done,or refused to do a particular act, shall be liable. As where one pays money to an agent for the use of his principal and afterwards becomes entitled to recall it, “he may, upon notice to the agent, recall it, provided the agent has not paid it over to his principal, and also provided no change has taken place in the situation of the agent, since the payment to him, before such notice. Paley on Agency, by Lloyd, 388 to 394.’ 3 Chitty on Comm, and Manuf. 313. 2 Liverm. on Agency, 260, 261, ed. 1818. Cox v. Prentice, 3 M. & Selw. 344. Hearsay v. Pruyn, 7 Johns. R. 179. Mowatt v. M’Lellan, 1 Wend. 173. The mere fact, that the agent has passed such money in account with his principal, or that he has made a rest in his accounts, without any neW credit being given to the principal, will not of itself be sufficient to entitle the agent to retain the money, when the party, entitled to recall it, demands it. 3 Chitty on Comm, and Manuf. 313. Paley on Agency, by Lloyd, 388, 389. 2 Liverm. on Agency. 261, ed. 1818. Buller v. Harrison, Cowp. R. 565. Cox v. Prentiec, 3 M. & Selw. 344. But, if a new credit has been given to the principal since the payment, or if bills have been accepted, or if advances have been made, on the footing of it, the payment cannot be recalled. 3 Chitty on Comm, and Manuf. 313. Buller v. Harrison, Cowp. 565. Paley on Agency, by Lloyd, 388, 389. 2 Liverm. on Agency, 264-266, ed. 1818. Mowatt v. M’Lellan, 1 Wend. 173. A fortiori, if the money has been paid over to the principal before notice of the recall, the agent will not be liable, unless, indeed, the receipt of the money by the agent was obviously fraudulent and illegal, or his authority to receive it was known to himself to be utterly void. 3 Chitty on Comm, and Manuf 313. Cary v. Webster, 1 Str. 408. Campbell v. Hall, Cowp. R. 204. Edwards v. Hodding, 5 Taunt. 515. Snowden v. Davis, 1 Taunt. R. 359. Ripley v. Gelston, 9 Johns. R. 201. Smith on Merc, Law, 80-81, 2d ed. Id. p. 143, 144, 3d ed. 1843. Buller v. Harrison, Cowp. R. 565. Paley on Agency, by Lloyd, 388-390. Seidell v. Peckworth, 10 Serg. & R. 442. Frye v. Lockwood, 4 Cowen, 454. Various examples might be put to illustrate this doctrine. Thus, where money has been paid to an agent to avoid an illegal distress, or an illegal claim ; as, to the bailiff of a sheriff, to avoid an illegal distress; or, where money has been paid to a collector for an illegal duty, and notice of the objection is given to the agent, or collector, before he pays it over ; the party, paying it, may recover it back from the agent, or collector, notwithstanding he has since paid it over to the principal. Snowden v. Davis, 1 Taunt. R. 359. Edwards v. Hodding, 5 Taunt. R. 815. Ripley v. Gelston, 9 Johns. R. 201. Bank of U. States v. Bank of Washington, 6 Peters, R. 8, 19. Tracy v. Swartwout, 10 Peters, R. 80. Elliott v. Swartwout, 10 Peters, R. 137. Frye v. Lockwood, 4 Cowen, 454. 2 Liverm. on Agency, 262-264, ed. 1818. Smith on Merc. Law, 82, 2d ed. Id. Pt. 1, ch. 5, § 7, p. 143-145, 3d ed. 1843. Bend v. Hoyt, 13 Peters, R. 263. Allen v. M’Keen, 1 Sumner, R. 277, 278, 317. Miller v. Aris, 3 Esp. R. 231. S. C. cited Selwyn’s Nisi Prius, 93, 8th ed. Paley on Agency, by Lloyd, 393, 394. But, if the illegality is unknown to the agent, and no objection of that sort is made before be has paid over the money, he will not be liable therefor.’’ This.subjeet is elaborately discussed and the principal cases are reviewed in Judge Story’s work on Agency, 2d ed. 310-381, to which the reader is respectfully referred.